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Even Hurtful Speech

In a narrow ruling in the sense of applying law to one set of facts, the Supreme Court has provided an admirable reminder of how broad the protection of free speech is under the Constitution’s First Amendment, including hurtful and hateful speech.

The court has said before that speech about public affairs is “the essence of self-government,” warranting “special protection.” Writing for an eight-justice majority, Chief Justice John Roberts Jr. argued that this country has chosen “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

In Snyder v. Phelps, the issue was signs displayed by picketers at the funeral of a Marine, Lance Cpl. Matthew Snyder, who was killed in Iraq. The signs included such disgusting statements as “Thank God for Dead Soldiers” and “Fags Doom Nations.” The Rev. Fred Phelps, the founder of Westboro Baptist Church in Kansas, used Corporal Snyder’s funeral, as he has other military funerals, to publicize his belief that God hates the United States because of its tolerance of homosexuality.

To Chief Justice Roberts, while this view may make a “negligible” contribution to “public discourse,” it is about “matters of public import,” including “the political and moral conduct of the United States and its citizens.” He wrote that the picketing was orderly and on public land, in compliance with local rules and done under police supervision — in other words, fully constitutional.

The court found that the church is not liable for a $5 million jury award to Albert Snyder, Matthew’s father, for infliction of emotional distress and other wrongs.

A dissent by Justice Samuel Alito Jr. underscored the wounding nature of the Westboro group’s words. He wrote that he would not have protected what seemed to him a “vicious verbal assault” on the Snyders.

Justice Stephen Breyer, who otherwise joined the majority, filed a concurrence to make sure the dissent is not written off as a jeremiad. “As I understand the court’s opinion,” he said, “it does not hold or imply that the state is always powerless to provide private individuals with necessary protection.”

The Roberts opinion takes on added meaning in light of the other two. “Speech is powerful,” the chief justice observed. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”

In the kind of incisive language he is capable of when he cares about the legal principle at stake, Chief Justice Roberts described the effects of words wielded as weapons against individuals, while arguing that even deeply flawed ideas must be defended because they are part of the public debate on which this country depends.

A version of this editorial appears in print on March 3, 2011, on page A26 of the New York edition with the headline: Even Hurtful Speech. Today's Paper|Subscribe